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Paternalism and Campaign Finance Law

January 22nd, 2010 · 28 Comments

Something that’s implicit in a lot of defenses of the Citizens United ruling I’ve seen in the past day is probably worth noting explicitly: The ban on independent corporate/union expendituures for “electioneering communications” that the court struck down was actually quite narrow.  Basically it covered TV and radio advertising, and didn’t touch myriad other forms of political persuasion that rely equally on corporate money. Political magazines, books, radio programs, Web sites, TV shows, theatrical films, and so on are all put out by corporations that, in many cases, take money from still other corporations.  Mostly we’ve been pointing this out as a kind of reductio: “Your argument works exactly as well for all of these other forms of speech, but nobody thinks a ban on the New York Times would be constitutional just because it’s published by a corporation.”  (The responses to this seem to consist of some very confused ideas about what the word “press” in the First Amendment means.)

But I think it’s probably worth probing the underlying intuition here: Why is it that so many people who clearly do think books and magazines and talk radio shows enjoy unambiguous constitutional protection, despite being corporate funded or operated, are simultaneously absolutely sure that paid broadcast spots are in an utterly different category? If one is above all concerned with exacerbating the translation of economic inequality into political inequality, it seems rather odd.  In effect, it means you only get to use your corporate money to get your agenda on the airwaves if (like GE or Time Warner) you’re big enough to buy them wholesale. But that’s OK, because you can pump money into all those other means of trying to influence voters; it’s just broadcast advertising that’s out. So I’d like to flip the reductio question around and ask: Given that people seem to mostly agree that all this other stuff constitutes protected political speech, why do so many people have such a different attitude about paid ads?

My hunch is that it has something to do with the imagined audience.  Political content is generally sought out and consumed by people who are already politically engaged and informed, and probably have some settled partisan commitments already. Broadcast ads basically deliver a vague positive or negative association, maybe by force of sheer repetition, to people who might not otherwise be paying any attention. So there’s a temptation not to think of it as speech—at even a debased sort of attempt at reasoned persuasion—but rather as a kind of low-grade brainwashing. That might not be far wrong, but I dislike the idea of importing a pessimistic view of our savvy as citizens into our thinking about the protection due political speech, even where the pessimism is defensible.

Tags: Horse Race Politics · Journalism & the Media · Law


       

 

28 responses so far ↓

  • 1 Jacob Wintersmith // Jan 23, 2010 at 12:22 am

    Care to unpack that last sentence a bit? I don’t really understand your objection to doing so even if it’s true.

  • 2 Saul // Jan 23, 2010 at 12:36 am

    Yeah, likewise. I mean, I understand that it’s possible and maybe sometimes even correct to base positions purely on principle, but in general it would be plainly self-defeating to craft rules that are in strong opposition to or based on a misapprehension of human nature and institutions.

    I don’t really have a strong opinion on campaign finance law, but my immediate reaction to the reductio you pose is that in fact we do strongly suspect that moneyed interests use specific means to exert undue influence on the political process. Trying to ban those means might be futile, but the intuition underlying the impulse isn’t obviously absurd.

  • 3 Julian Sanchez // Jan 23, 2010 at 1:53 am

    So, I’ve heard someone once asked Confucius whether he thought the spirits of ancestors came to accept offerings of food. And he replied: “We would be foolish to think they do, but unkind to think they do not.”

    While I don’t consider this a compelling case for ancestor worship, I think it captures something of my attitude here. The relationship between a democratic government and the citizenry should be premised on the idea that adult citizens are basically competent to evaluate information and make up their own minds about matters of public controversy, even though there are plenty of cases where big chunks of the population fall well short of the ideal in practice. We do this socially except in really extreme cases: Sometimes you can be pretty confident that a friend is incapable of thinking objectively or clearly about a particular charged issue, or of making sound decisions in a particular area, but we show respect for the person by treating them as if this isn’t the case.

    You can cast it in consequentialist terms—it’s dangerous to start presuming to know which kinds of political information the public can be trusted to process wisely. It’s really just a variant of the first-order argument for free speech: You remove from the political purview a broad category of judgments about the merit or social value of particular instances of speech, even if in many particular cases it will be perfectly defensible to judge that we’d probably be better off without this or that bit of speech. Though I do still think the as-if respectful stance has a sort of constitutive value within the state/citizen relationship, even apart from its instrumental value as a check on political institutions.

  • 4 Paul Gowder // Jan 23, 2010 at 1:31 pm

    Julian, the word “paternalism” is a very poor way to express what you’re objecting to here. Most of those who object to low-grade brainwashing of the political advertising sort (and I’ll happily say that I do think of it that way) are not doing so out of a paternalist concern for the well-being of the brainwashed. Rather, it’s out of a concern for the functioning of the democracy as a whole, which only works with non-brainwashed citizens.

    (As for the freedom of the press point, the account in the most recent post on my own blog can handle it: the reason the state can’t ban the New York Times isn’t because the corporation that owns it has free speech/press rights, but because it can’t ban outlets for individuals to exercise those rights.)

  • 5 Derek Scruggs // Jan 23, 2010 at 2:21 pm

    I generally oppose camapaign finance limits on principle, but as others have noted, the polity can be brainwashed. To cite a trivial example: I’ll wager a majority of people still believe Gore actually claimed to have invented the Internet.

    That cuts both ways. Though Rush Limbaugh was IMO a jackass to say what he did about Haiti, I also know his comment about “light and dark skin” was an ironic refence to Harry Reid. I suspect most people don’t.

  • 6 southpaw // Jan 23, 2010 at 2:30 pm

    The political ad is electioneering in a rather pure and concentrated form. So I’d propose another reductio.

    Suppose a Saudi sovereign wealth fund set up, right at the front door of every polling place in every swing state, agents with clipboards and bullhorns and a big sign that said “SIGN UP TO VOTE FOR STARK. IF STARK WINS THIS PRECINCT, EVERYONE WHO SIGNS UP WILL BE MAILED $100.” Is that just protected speech?

    Suppose the fund runs heavy ad buy that says “IF STARK FAILS TO WIN THIS STATE, WE WILL CAUSE THE FOLLOWING COMPANIES WE CONTROL TO DIVEST AND SHUT DOWN THEIR FACILITIES HERE: Citibank, 3M . . . .”

  • 7 Julian Sanchez // Jan 23, 2010 at 3:12 pm

    You are probably right that “paternalism” is not the most apt term, but I don’t know how far it affects the argument. Generally we assume the blunt rule of permitting political speech serves the structural function of ensuring an informed voting public. Not because it’s never the case that prohibiting particular classes of low-value speech might improve public deliberation, if you picked the right speech, but because we don’t rely on the political system itself to effectively discriminate. Because the deliberative process itself is what determines the permissible inputs, small errors will tend to compound over time. The reason we worry about paid campaign ads is also the reason they have a potentially important corrective value: They’re the only point of contact a big chunk of the populace has with political information.

    Also, I agree that framing things in terms of “corporate free speech rights” is somewhat unfortunate. I don’t think it’s any more than a kind of shorthand for the individual interests you’re talking about. But I don’t know what you think Citizens United or the ACLU are if not outlets for the exercise of individual speech rights. In any event, the focus of the First Amendment is on speech, not speakers.

  • 8 Julian Sanchez // Jan 23, 2010 at 3:19 pm

    southpaw-
    The law recognizes the kind of offer you’re talking about as a form of action, even if the means by which it’s carried out is speech. The individual/corporate distinction is irrelevant here; your individual right to free speech doesn’t protect your verbal offer to a hit man.

    In the second example, the part that makes us uneasy is the threat, not the means of disseminating it. The CEO could make the same announcement to the media, and I expect it would get widely circulated without their spending a dime.

  • 9 southpaw // Jan 23, 2010 at 4:01 pm

    Julian, the point I’m trying to get to is that putting the economic leverage of a corporate treasury behind the advocacy for or against the election of a specific candidate would have an outsize impact–not simply because big companies have the funds to repeat their message an adequate number of times but because their economic power makes their messages more resonant.

    The messages could be less blunt than my examples (a montage of factory buildings under cloudy skies. . . “PERKINS IS WRONG FOR KENTUCKY” . . . “paid for by Toyota”).

    But put that aside. The reality is that simply the threat of heavy ad buys will have an outsize impact. Imagine you’re a politician thinking of leading the charge on legislation adverse to, say, the five largest banks in the country: (i) pull up their balance sheets, (ii) calculate how many ads convincing voters you hate puppies 0.5% of their quarterly profits could buy, (iii) look at your own campaign warchest, (iv) move on to the next idea.

  • 10 RickRussellTX // Jan 24, 2010 at 3:34 am

    “their economic power makes their messages more resonant”

    Economic power in the hands of their owners. The ability of a corporation to pay for advertising is nothing more than an extension of the speech rights of the citizens who own it. If C-level executives are spending money on political messages not favored by the owners, then the board will take them to task and the problem solves itself.

    Yes, I admit the issue gets more complicated with companies that are foreign-owned, but that capital is invested in our borders, so the owners have a meaningful stake in the outcome of elections. Heck, if some of the founding fathers were still in charge, those property owners might be allowed to vote on the strength of capital ownership alone.

  • 11 RickRussellTX // Jan 24, 2010 at 3:40 am

    (sorry for the second post, but this just occurred to me)

    What limits would you put on a sole proprietor to spend the profits of their business on political advertising, profits that are inextricably woven into their household budget? How about a partnership? How about a large limited partnership?

    Anthony Maglica’s MAG-LITE is a sole proprietorship in Ontario, CA. Should he not be allowed to buy political advertising because his money is bound up in a company? What if he writes the checks to himself first, and puts it down on the books as a bonus?

    I don’t see any principled way to separate corporations from their owners.

  • 12 sam // Jan 24, 2010 at 7:23 am

    @Rick

    “Economic power in the hands of their owners. The ability of a corporation to pay for advertising is nothing more than an extension of the speech rights of the citizens who own it.”

    Ah, yes, well there’s a problem here. Does anybody really believe that the corporate leadership is going to poll the shareholders re any political advertising it seeks to engage in? Really? Many folks, maybe the majority of stockholders, own stocks through their 401(K)s, etc. Its quite possible that Behemoth Corp. decides to run ads that a large chunk of the stockholders find repugnant to their political interests. Anyone think that’ll stop BC’s ads? By the time the offended shareholders have a chance to register their objections, it’ll be too late. If I’m not mistaken, Steve Bainbridge, one of the most vocal advocates for corporations, argues that the board of directors and upper management are really the corporation, the shareholders are mere footsoldiers. If that’s correct, then the idea that the corporation will, necessarily, speak for its owners is misplaced.

  • 13 mike farmer // Jan 24, 2010 at 9:49 am

    I agree with Julian, plus, I believe that when a magic trick is revealed, it loses its power. We all know the trick of brainwashing by powerful special interests, but we think most don’t know the trick. I suspect enough know by now. Plus the information age offers a lot of competition.

    But beyond that, I agree that powerful special interests have an advantage, but the answer to that is not trying to stop from them from buying, which is futile — the only way to stop the buying of protection and favors is to limit government so that one corporation can’t be favored over another. Unless government is limited, and doesn’t have the ability to sell favors, then no amount of legislation will stop those with the money to buy more power and advantage.

  • 14 sam // Jan 24, 2010 at 9:58 am

    “Unless government is limited, and doesn’t have the ability to sell favors, then no amount of legislation will stop those with the money to buy more power and advantage.”

    True, but since corporate political advertising is a form of rent-seeking, it’s a safe guess that said advertising will be in the interests of making sure that the rents sought are secured. And that almost ensures the continuance of big government. Big business depends on big government. And vice versa.

  • 15 mike farmer // Jan 24, 2010 at 12:13 pm

    Sam,

    If that is true, and the people can not limit government power to dole out favors to corporations, then it’s all a moot point and we must accept the inevitability like big boys and girls. I’m not so fatalistic.

    If the will exists among the public to stop corporate welfare and cronyism, then we will stop it. If not, then so be it, we have only ourselves to blame. I refuse to believe nothing can be done, that we have to surrender to corporate power in cahoots with government.

  • 16 Zamfir // Jan 25, 2010 at 8:36 am

    I agree with Julian, plus, I believe that when a magic trick is revealed, it loses its power. We all know the trick of brainwashing by powerful special interests, but we think most don’t know the trick. I suspect enough know by now. Plus the information age offers a lot of competition.

    But if that were the case, why do spend significant amounts of money on such ads? Both politicians and interest groups seem pretty confident that putting lots of lots of ads on TV works.

  • 17 Money for Nothing? Or Buying Votes? | Xenia Institute // Jan 25, 2010 at 9:05 am

    [...] Julian Sanchez |  “Why is it that so many people who clearly do think books and magazines and talk radio shows enjoy unambiguous constitutional protection, despite being corporate funded or operated, are simultaneously absolutely sure that paid broadcast spots are in an utterly different category? If one is above all concerned with exacerbating the translation of economic inequality into political inequality, it seems rather odd.  In effect, it means you only get to use your corporate money to get your agenda on the airwaves if (like GE or Time Warner) you’re big enough to buy them wholesale. But that’s OK, because you can pump money into all those other means of trying to influence voters; it’s just broadcast advertising that’s out. So I’d like to flip the reductio question around and ask: Given that people seem to mostly agree that all this other stuff constitutes protected political speech, why do so many people have such a different attitude about paid ads?” [...]

  • 18 mike farmer // Jan 25, 2010 at 11:40 am

    I think at one time it did work — I work in an industry that still, for the most part, markets in an old school way, but the effectiveness is fading each year. A few people are on the edge of change and the others do what they’ve always done until they catch up with the change. I mean, who is really motivated to vote for someone because of an ad? Most of the people who go to the trouble of voting will do research and the internet is full of information. I think political advertising beyond a certain point is a waste of money — so, more doesn’t mean more effective.

  • 19 DivisionByZero // Jan 25, 2010 at 2:22 pm

    Julian, you said it yourself. Both radio and television are broadcasts. That’s why the government gets to censor them for naughty language and images. You can find much more explicit material via unicast means (e.g. books, magazines, and the internet). I’m not sure what the issue is here.

  • 20 Julian Sanchez // Jan 25, 2010 at 5:59 pm

    I was not under the impression that the special nature of broadcast played a significant role in the justification here, but it would make very little sense if it did. First, the CU case involved cable on demand programming, which looks an awful lot like unicast to me. Second, the “pervasiveness” rationale might make some sense in the context of “indecent” content presumed to be offensive to many viewers; it makes no sense in the context of political advertising. Not that I’m a huge fan of the Court’s broadcast indecency jurisprudence, but even if we accept it all wholesale, I don’t think it provides any support for the regulation at issue here.

  • 21 DivisionByZero // Jan 25, 2010 at 7:50 pm

    Sorry, I haven’t read Buckley v. Valeo. I should have before commenting.

  • 22 DivisionByZero // Jan 25, 2010 at 8:26 pm

    Btw, re: your first point: CU made this argument. Re: your second point I believe the reason that broadcasting “indecent” content is that it is more persuasive and would persuade more people to act indecently. In the case of political advertising it may be that broadcast mediums were considered too potent and needed some kind of restraint. Whatever the case I have more of a problem with equating spending money with speech. How then can the government forbid us from buying anything?

  • 23 Julian Sanchez // Jan 25, 2010 at 11:49 pm

    “Equating money with speech” has never struck me as a particularly fair summary of the argument. The idea is not that “money is speech” per se; it’s that regulation can BURDEN speech even if, in theory, it only targets expenditures. In other words, the government doesn’t get to cheat on the First Amendment and say: “Well, we can’t make it illegal to criticize the drug laws, but we can make it illegal to SPEND MONEY on criticizing the drug laws.” It’s the same reason a law banning yarmulkes or headscarves would (under normal circumstances) run afoul of the free exercise clause, even if the words “Judaism” and “Islam” didn’t appear in the legislation.

  • 24 RickRussellTX // Jan 26, 2010 at 1:12 am

    @sam

    “Does anybody really believe that the corporate leadership is going to poll the shareholders re any political advertising it seeks to engage in?”

    Isn’t this exactly the… for want of a better word… paternalism Julian is decrying?

    Presumably, if the interaction of my political views and my stock portfolio are important to me, I should make some effort to follow the news about the companies I invest in. If I choose to give my money to somebody else and let them handle the details, then I implicitly do not have such concerns.

    Corporations do all sorts of stuff on my behalf (as a tiny minority owner), and I’m free to dump my ownership on the secondary market in a heartbeat if I disagree with them.

  • 25 DivisionByZero // Jan 26, 2010 at 8:55 am

    ““Equating money with speech” has never struck me as a particularly fair summary of the argument. The idea is not that “money is speech” per se; it’s that regulation can BURDEN speech even if, in theory, it only targets expenditures.”

    I see. That would explain the monotonous repetition of the word “chilling” in the decision. If we step away from first principles (which in my opinion justify this decision regardless of the whole personhood debate) and consider conditionals, then I don’t see this supposed “chilling” effect to be significant enough to take the risk of compromising the electoral system. Notice I said risk. I’m not saying it will happen but there is the possibility and while the possibility may be low the results would be catastrophic. Thus from a risk-benefit perspective it’s simply not worth it.

  • 26 Links and Quotes «  Modeled Behavior // Jan 26, 2010 at 11:08 pm

    [...] post on the Supreme Court decision (see Karl’s take below). The best so far on this issue are Julian Sanchez and Eugene Volokh. Julian writes: Why is it that so many people who clearly do think books and [...]

  • 27 Citizens United and Corporations as the Super Duper « Trevor Burrus // Jan 27, 2010 at 2:50 pm

    [...] is an element of paternalism to both sides, but as Julian Sanchez of the Cato Institute skillfully points out, the left has a distrust of the shotgun-style broadcast ads that may influence those who are not [...]

  • 28 m65 // Mar 7, 2010 at 8:43 pm

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